United States v. Stockton ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4093
ROLANDO STOCKTON,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 02-4139
ROLANDO STOCKTON,
Defendant-Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CR-99-352-MJG)
Argued: September 26, 2003
Decided: November 17, 2003
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed in part, reversed in part, and remanded with instructions by
published opinion. Judge Williams wrote the opinion, in which Judge
Traxler and Judge King joined.
2 UNITED STATES v. STOCKTON
COUNSEL
ARGUED: G. Godwin Oyewole, Washington, D.C., for Appellant.
James G. Warwick, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Andrea L. Smith, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Rolando Stockton appeals his convictions for drug conspiracy and
for firearms-related offenses committed in connection with that con-
spiracy. Stockton argues that the evidence presented at trial was insuf-
ficient to support the jury’s guilty verdict on each of the counts of
conviction, that the district court committed plain error in failing to
give the jury a "multiple conspiracies" instruction, and that prosecu-
torial misconduct during the trial effectively denied him his right to
a fair trial. The Government cross-appeals the district court’s decision
to depart downward from the prescribed sentence range based on the
alleged over-representativeness of the career offender enhancement.
For the reasons set forth below, we affirm the convictions, but reverse
the sentence, and remand the case for re-sentencing with instructions
to impose a sentence within the range prescribed by the Sentencing
Guidelines.
I.
On April 17, 2001, a federal grand jury sitting in the District of
Maryland returned a five-count Fifth Superseding Indictment (indict-
ment) charging Rolando Stockton with various offenses related to his
alleged participation in a heroin trafficking conspiracy operating in
the Park Heights neighborhood of Baltimore, Maryland. In count one
of the indictment, the Government charged Stockton with conspiracy
to distribute, and conspiracy to possess with intent to distribute, one
kilogram or more of heroin from 1994 to April 2000, in violation of
21 U.S.C.A. § 846 (West 1999). In support of this conspiracy charge,
UNITED STATES v. STOCKTON 3
the Government alleged that the members of the conspiracy used vio-
lence to enforce discipline within the conspiracy and used violence to
keep those outside the conspiracy from interfering with the conspira-
cy’s operations. One of the alleged overt acts of the conspiracy was
the attempted murder of Ricky Ricardo Jones on May 13, 1999. That
attempt resulted in the shooting of Clinton Williams. In counts two
through five of the indictment, the Government charged Stockton
with four firearms violations stemming from the events of May 13,
1999, specifically, use of a firearm against Jones during and in rela-
tion to a drug trafficking crime in violation of 18 U.S.C.A. § 924(c)
(West 2000) (count two); use of a firearm against Clinton Williams
during and in relation to a drug trafficking crime, also in violation of
§ 924(c) (count three); possession of a firearm by a convicted felon
in violation of 18 U.S.C.A. § 922(g)(1) (West 2000) (count four); and
possession of ammunition by a convicted felon, also in violation of
§ 922(g)(1). Stockton entered a plea of not guilty, and a trial by jury
ensued.
During the trial, the Government presented voluminous evidence
respecting the existence of the Park Heights heroin trafficking con-
spiracy and Stockton’s role therein. The evidence included testimony
from the police officers who had investigated the conspiracy, individ-
uals involved in the street-level operations of the conspiracy, and two
of the top-level members of the conspiracy, Antonio Hayes and Elijah
Jacobs. Collectively, these witnesses described a criminal enterprise
that established a market for the distribution of heroin in the mid-
1990s, and ruthlessly protected that market through 2001 by fre-
quently using violence to dispose of competitors and transgressors.
Hayes and Jacobs both testified that Stockton was an active member
of the conspiracy, both in 1994 and in 1999. Stockton was absent
from the conspiracy between those years because of his incarceration
resulting from a state conviction.
Evidence at trial similarly supported the Government’s charges
respecting the assault on Ricky Ricardo Jones and Clinton Williams
on May 13, 1999. Particularly damaging to the defense was the testi-
mony of Williams, an eyewitness to the assault. Williams testified
that, on that date, he gave Jones a ride into the Park Heights neighbor-
hood. While in Park Heights, he stopped in an alley to let Jones out
of the car. Jones got out of the car and left the immediate vicinity.
4 UNITED STATES v. STOCKTON
Williams remained in the car, and after a short period of time, Stock-
ton approached the car and asked Williams why he was in the neigh-
borhood and why he was with Jones. Williams testified that, before
he could answer, Stockton spotted Jones, an argument ensued, and
Stockton pulled a gun. Upon seeing the gun, Williams ducked down
and attempted to flee down the alley in his car. As he was fleeing,
Williams heard gunfire, and soon realized that he had been shot in the
right arm. Antonio Hayes corroborated Williams’s testimony by not-
ing that, on May 13, 1999, Stover Stockton — Rolando’s brother and
fellow member of the conspiracy — asked Hayes for a gun because
Stover had given his gun to Rolando. Hayes also explained that Jones
was targeted because he was selling drugs in the neighborhood with-
out the conspiracy’s permission.
Stockton testified in his own defense and generally denied an asso-
ciation with the Park Heights conspiracy, either in 1994 or 1999.
Regarding the events of May 13, 1999, Stockton admitted being in the
general area where the shooting took place but claimed that he was
not the gunman. Rather, Stockton explained, he had acted as a peace-
maker and tried to calm Jones, who, according to Stockton, was upset
because his cousin had been assaulted. Stockton testified that, after
speaking with Jones, Jones gave him a hug, and then Stockton walked
away toward the house of Tasha Gray, Stockton’s girlfriend and the
mother of one of his children. As Stockton was walking away, he
heard gun shots and then ran toward Gray’s house. Stockton also tes-
tified that he had never met Jones before May 13, 1999.
During the cross-examination of Stockton, the Government pressed
Stockton on whether he actually had known Jones before the May 13
incident. The following exchange ensued:
Q. If I understood your testimony a few minutes ago, you
told us all that prior to May 13th of 1999, you had never
seen, never laid eyes on Ricky Ricardo Jones, correct?
A. That’s correct.
Q. And if I also understood your testimony, you told us
that you don’t think you’d be able to recognize him if you
saw him, is that also your testimony?
UNITED STATES v. STOCKTON 5
A. Yes.
Q. And you have no reason to understand, based upon
what you told us, why anybody might shoot at him, correct?
A. Correct.
Q. If you do not know Ricky Ricardo Jones, other than the
brief conversation that you told us about in your direct testi-
mony a few moments ago —
A. Yes.
Q. — why are you calling him as a witness on Monday?
(J.A. at 101-02.) At this point, counsel for Stockton objected, to
which the Court responded:
I sustain the objection. That’s preposterous. That’s abso-
lutely obscene. Strike that. Disregard that. It is absolutely
nonsense. It is ridiculous. [T]he man has a lawyer who
investigated the case. Mr. Ricardo Jones is obviously a fig-
ure in the case. Of course, counsel’s going to find him.
Now, move to something else.
(J.A. at 102.) Jones eventually did testify for the defense and essen-
tially corroborated Stockton’s version of the events of May 13, 1999.
In its rebuttal case, the Government called Tasha Gray, whom the
defense had chosen not to call. Gray related a version of the events
of May 13, 1999, that might have been helpful to Stockton, had it not
been at odds with the testimony of Stockton and Jones. Gray testified
that Stockton had been on the porch of her house with her from the
time Jones drove into the neighborhood until after the shooting. Gray
also testified that defense counsel had told her that she would be cal-
led as a witness for the defense.
During closing argument, the Government highlighted the fact that
Stockton had failed to call Gray as a witness, stating, "[a]nd then, of
6 UNITED STATES v. STOCKTON
course, there was Tasha Gray, who was supposed to be a defense wit-
ness, but then [they] chose not to call her." (J.A. at 123.) Counsel for
Stockton objected and the district court responded by stating, "[w]ell,
I’m going to allow argument, and people have a difference of opinion,
you can air it in your arguments. Okay. Go ahead." (J.A. at 123.)
At the close of argument, counsel for Stockton moved for a mis-
trial, stating that the inappropriate question during the cross-
examination of Stockton in combination with the Government’s men-
tion of Stockton’s failure to call Tasha Gray as a witness effectively
denied Stockton his right to a fair trial. The district court denied the
motion, and the jury ultimately found Stockton guilty on each of the
five counts of the indictment.1
At sentencing, Stockton moved for a downward departure based on
the over-representativeness of his criminal history category. See U.S.
Sentencing Guidelines Manual § 4A1.3 (1998). Because Stockton had
two prior felony controlled substance convictions — an October 10,
1990 conviction for possession with intent to distribute narcotics and
a January 4, 1991 conviction for distribution of narcotics — he quali-
fied as a career offender under U.S.S.G. § 4B1.1. After initially argu-
ing that the career offender enhancement should not apply at all
because the predicate offenses should not count separately, defense
counsel conceded that the predicate offenses should count separately,
and then made an oral motion for downward departure pursuant to
U.S.S.G § 4A1.3 based on the over-representativeness of the career
offender classification. Stockton’s rationale in support of his motion
was that both of the predicate offenses were for dealing drugs in the
Park Heights area of Baltimore, and thus they were part of the same
course of conduct. The district court granted the motion for departure,
and sentenced Stockton as if the career offender enhancement did not
apply, resulting in a downward departure of 150 months. In total,
Stockton received a sentence of 330 months incarceration (210
months on count one, and 120 months on each of counts four and five
(concurrent to each other and to the sentence on count one), and 120
months on count two (consecutive)). Had the district court not
departed, Stockton would have received a minimum sentence of 360
1
The district court later vacated the conviction on count three for rea-
sons that are not relevant to this appeal.
UNITED STATES v. STOCKTON 7
months on count one, which, with the mandatory consecutive 120
month sentence on count two, would have resulted in a minimum sen-
tence of 480 months incarceration.
On appeal, Stockton challenges his convictions, arguing that (1) the
evidence at trial was insufficient to support his conviction on any of
the charges; (2) the district court committed plain error in failing to
issue a "multiple conspiracies" instruction; and (3) that the Govern-
ment’s transgressions during the trial effectively denied him his right
to a fair trial, and therefore, the district court should have declared a
mistrial. The Government cross-appeals the sentence, arguing that the
departure was inappropriate and should be reversed. We address each
issue in turn.
II.
A.
When considering a sufficiency of the evidence challenge to a
guilty verdict, we must sustain the jury’s verdict "if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it." United States v. Glasser, 315 U.S. 60, 80 (1942); see also
United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003). In deter-
mining whether the evidence in the record is "substantial," we view
the evidence in the light most favorable to the Government and
inquire whether there is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt. United States v. Burgos,
94 F.3d 849, 862-63 (4th Cir. 1996).
The evidence presented at trial, when viewed in the light most
favorable to the Government, is more than sufficient to support the
jury’s guilty verdict on each of the counts. Respecting the conspiracy
charge, the jury heard corroborating testimony from multiple wit-
nesses about the existence of the agreement among multiple parties
to distribute heroin in the Park Heights neighborhood. Two of the top
echelon members of the conspiracy testified that Stockton knew of,
and participated in, the conspiracy from 1994 through 1999, with the
only interruption stemming from his incarceration. Thus, the evidence
was more than sufficient to satisfy each of the elements of a conspir-
8 UNITED STATES v. STOCKTON
acy under 21 U.S.C.A. § 846. See Burgos, 94 F.3d at 857-58 (explain-
ing that conspiracy under § 846 requires the Government to prove
"(1) an agreement to possess [a controlled substance] with intent to
distribute existed between two or more persons; (2) the defendant
knew of the conspiracy; and (3) the defendant knowingly and volun-
tarily became a part of this conspiracy" and noting that these elements
may be proved wholly through circumstantial evidence).
Regarding the weapons charges, the testimony of Clinton Williams
placed Stockton at the scene of the May 13, 1999 incident with gun
in hand. Although Williams did not see Stockton actually fire the gun,
Williams’s testimony that he heard gunshots immediately after seeing
Stockton with the gun is sufficient direct evidence to support the rea-
sonable inference that Stockton was the one who fired. While it is true
that Williams’s recollection of the events was at odds with that of
Stockton and Jones, it was the responsibility of the jury to weigh the
evidence and determine which version to believe. See id. at 862. The
jury chose to believe Williams and disbelieve Stockton and Jones, and
we see no reason to disturb that conclusion here. In sum, the evidence
was sufficient to support the jury’s guilty verdict on each of the fire-
arms charges.
B.
The next issue that Stockton raises is whether the district court
should have given a "multiple conspiracies" instruction to the jury.2
At trial, Stockton neither requested such a "multiple conspiracies"
instruction, nor objected at the charging conference to the lack of such
an instruction. Therefore, we consider any resulting error only if it is
"[a] plain error that affects substantial rights." Fed. R. Crim. P. 52(b).
In order to notice a putative error under Rule 52(b), Stockton first
"must demonstrate [1] that an error occurred, [2] that the error was
plain, and [3] that the error affected his substantial rights." United
States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001). Even if Stockton
satisfies these requirements, correction of the error remains within the
discretion of the appellate court, which the court "should not exercise
2
Neither in his briefs nor at oral argument did Stockton identify the
specific "multiple conspiracies" instruction that the district court should
have given.
UNITED STATES v. STOCKTON 9
. . . unless the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’" United States v. Olano, 507 U.S.
725, 732 (1993) (alteration in original) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)).
In cases where a defendant is charged with conspiracy, a district
court must issue a "multiple conspiracies" instruction where the evi-
dence supports a finding that multiple conspiracies existed. United
States v. Bowens, 224 F.3d 302, 307 (4th Cir. 2000). However, "‘[a]
multiple conspiracy instruction is not required unless the proof at trial
demonstrates that [the defendant] [was] involved only in [a] separate
conspirac[y] unrelated to the overall conspiracy charged in the indict-
ment.’" United States v. Squillacote, 221 F.3d 542, 574 (4th Cir.
2000) (quoting United States v. Kennedy, 32 F.3d 876, 884 (4th Cir.
1994)). We have noted that a single overall conspiracy can be distin-
guished from multiple independent conspiracies based on the overlap
in actors, methods, and goals: "A single conspiracy exists where there
is ‘one overall agreement,’ or ‘one general business venture.’
Whether there is a single conspiracy or multiple conspiracies depends
upon the overlap of key actors, methods, and goals." United States v.
Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (citations omitted).
The evidence at trial did not support a finding that Stockton was
involved in a separate conspiracy. Instead, the evidence at trial
showed rather compellingly that one, and only one, enterprise con-
trolled the distribution of heroin in the Park Heights neighborhood of
Baltimore from 1994 through 1999, and that it operated as one contin-
uous business enterprise. Elijah Jacobs testified at trial that Rolando
Stockton was involved in the conspiracy before he went to jail in
1994, and that he rejoined upon his release in 1999. There was no evi-
dence that Stockton was involved in a separate conspiracy unrelated
to the Park Heights ring. The district court committed no error, plain
or otherwise, in failing to give a "multiple conspiracies" instruction.
C.
The remaining issue Stockton raises on appeal is whether the inci-
dents of alleged prosecutorial misconduct had the effect of denying
Stockton his right to a fair trial. Stockton raised this argument at trial
in a motion for mistrial, which the district court denied. We review
10 UNITED STATES v. STOCKTON
the denial of a motion for mistrial for abuse of discretion. United
States v. Stewart, 256 F.3d 231, 241 (4th Cir. 2001).
We apply a two-pronged test in determining whether alleged inci-
dents of prosecutorial misconduct warrant reversal. We must assess
"(1) whether the prosecutor’s remarks or conduct was improper, and
(2) whether such remarks or conduct prejudicially affected the defen-
dant’s substantial rights so as to deprive [him] of a fair trial." United
States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994); see also United
States v. Bennett, 984 F.2d 597, 608 (4th Cir. 1993) (applying the
standard to an allegedly improper question asked during cross-
examination). The Government candidly concedes that its question
during the cross-examination of Stockton was improper, but disputes
the assertion that the reference in closing argument to the defendant’s
decision not to call Tasha Gray as a witness was improper. Therefore,
our task here is to determine whether the Tasha Gray comment was,
in fact, improper, and whether the cumulative effect of any prosecu-
torial misconduct prejudicially affected Stockton’s substantial rights.
Stockton has not clearly explained how the Government’s com-
ment regarding Tasha Gray implicated his constitutional rights. In
cases where the defendant has exercised his Fifth Amendment right
not to testify, the Government must exercise care in commenting on
the defendant’s failure to produce witnesses, so as not to violate the
rule of Griffin v. California, 380 U.S. 609 (1965), by calling attention
to the defendant’s own failure to testify. See United States v. Parker,
903 F.2d 91, 98 (2d Cir. 1990); United States v. Fleishman, 684 F.2d
1329, 1343 (9th Cir. 1982). But here, Stockton testified, so the com-
ment could not have implicated his right to remain silent. Moreover,
because Tasha Gray herself testified, the comment was not an invita-
tion to the jury to infer that the testimony would have been adverse
to Stockton’s case. Cf., e.g., United States v. Fisher, 484 F.2d 868,
870 (4th Cir. 1973) ("Where a witness is readily available to both
sides, no inference is to be drawn against either party from the fact
that he has not been called."). In short, Stockton has not demonstrated
how this comment implicated any constitutional right.3 In actuality,
3
It is important to note that, had Gray herself not testified that the
defense had intended to call her as a witness, her status as an erstwhile
defense witness would not have been evidence in the record, and any
mention thereof in closing argument would have been an inappropriate
attempt by the prosecution to inject into the case evidence not before the
jury.
UNITED STATES v. STOCKTON 11
the comment appears to have been nothing more than an attempt to
call attention to the inconsistencies between Gray’s testimony and
Stockton’s testimony, and thereby invite the jury to infer that Stock-
ton was not a credible witness — the type of inference that is grist
for the mill in closing argument.
Because the Tasha Gray comment was not improper, the only inci-
dent of prosecutorial misconduct was the Government’s improper
question to Stockton on cross-examination. Therefore, Stockton can
prevail only if that question was so prejudicial as to deny him his
right to a fair trial. In determining whether a prosecutor’s inappropri-
ate remarks amount to reversible misconduct, four factors are rele-
vant:
"(1) the degree to which the prosecutor’s remarks have a
tendency to mislead the jury and to prejudice the accused;
(2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof intro-
duced to establish the guilt of the accused; and (4) whether
the comments were deliberately placed before the jury to
divert attention to extraneous matters."
Bennett, 984 F.2d at 608 (quoting United States v. Harrison, 716 F.2d
1050, 1052 (4th Cir. 1983)).
Applying these factors to the present case, it is clear that Stockton
has not demonstrated reversible prejudice. First, any tendency to mis-
lead the jury and prejudice Stockton was minimal. The Government
may have prejudiced Stockton by suggesting an inappropriate reason
to doubt his credibility. Nevertheless, the district court promptly miti-
gated the damage by sustaining the defense’s objection and instruct-
ing the jury in emphatic terms to disregard the question. Therefore,
any resulting prejudice was minimal. See Bennett, 984 F.2d at 608(finding that a district court, in sustaining an objection to an inappro-
priate question on cross-examination, effectively minimized the preju-
dice of an inappropriate question). In addition, the question was
relatively isolated. Although the Government made a concerted effort
to attack Stockton’s credibility, it only crossed the line on this lone
occasion and did not refer to Stockton’s familiarity with Jones during
closing argument. Third, the Government’s case in general, and the
12 UNITED STATES v. STOCKTON
evidence of Stockton’s lack of credibility specifically, were strong.
Stockton’s version of events on May 13, 1999, was directly at odds
with that of the victim, Clinton Williams, and inconsistent with that
of Tasha Gray. In short, setting to the side the inappropriate question,
the jury had ample basis to conclude that Stockton lacked credibility
as a witness and was guilty of the crimes charged. Finally, there is no
suggestion that the prosecution’s inappropriate question was a delib-
erate attempt to divert the jury’s attention to extraneous matters.
Therefore, the district court did not abuse its discretion in denying
Stockton’s motion for mistrial.
III.
The Government raises one issue in its cross-appeal: Whether the
district court erred when it departed downward based on the over-
representativeness of Stockton’s classification as a career offender
under U.S.S.G. § 4B1.1. Sentencing courts may depart from the sen-
tence ranges prescribed by the Sentencing Guidelines whenever the
Guidelines have not accounted for peculiar circumstances in a given
case. Generally, a court may depart from the Guidelines when it
"finds that there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission." 18 U.S.C.A. § 3553(b) (West 2000). We
review the district court’s factual determinations made in connection
with sentencing for clear error, United States v. Rybicki, 96 F.3d 754,
757-58 (4th Cir. 1996), and review the ultimate decision to depart de
novo.4 18 U.S.C.A. § 3742(e) (West Supp. 2003).
4
Prior to April 30, 2003, we reviewed a district court’s decision to
depart from the Guidelines for abuse of discretion. See Koon v. United
States, 518 U.S. 81 (1996); United States v. Rybicki, 96 F.3d 754, 757-
58 (4th Cir. 1996). Congress, however, recently amended 18 U.S.C.A.
§ 3742(e)(4), to require de novo review of certain departure decisions.
See Prosecutorial Remedies and Tools Against the Exploitation of Chil-
dren Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21,
§ 401(d)(2), 117 Stat. 650, 670. Application of the de novo standard of
review pursuant to § 402(d) of the PROTECT Act here does not impli-
cate the Ex Post Facto Clause because a change in the standard of review
merely changes "who within the federal judiciary makes a particular
decision, . . . not the legal standards for that decision." United States v.
Mallon, ___ F.3d ___, No. 03-2049, 2003 WL 22285302, *6 (7th Cir.
Sept. 18, 2003); see United States v. Hutman, 339 F.3d 773, 775 (8th Cir.
2003).
UNITED STATES v. STOCKTON 13
The Sentencing Guidelines state that sentencing courts may depart
downward where the defendant’s criminal history category "signifi-
cantly over-represents the seriousness of a defendant’s criminal his-
tory or the likelihood that the defendant will commit further crimes."
U.S.S.G. § 4A1.3. Therefore, a sentencing court is encouraged to
depart downward when a defendant’s criminal history category exag-
gerates the seriousness of his past criminal conduct or the likelihood
that he will commit further crimes. United States v. Adkins, 937 F.2d
947, 952 (4th Cir. 1991). The same analysis applies when a defendant
urges a sentencing court to find that his classification as a career
offender over-represents the seriousness of his actual criminal history
or his likelihood of recidivism. Id.Over-representativeness arguments of the type that Stockton
advances here are availing where, for instance, a defendant has two
relatively minor prior convictions that do not suggest that the defen-
dant is truly a "career offender." United States v. Pearce, 191 F.3d
488, 498 (4th Cir. 1999). But where, as here, the defendant’s criminal
history reflects recidivism in controlled substance offenses, an over-
representativeness departure is almost never appropriate. See Adkins,
937 F.2d at 952 (noting that Congress deemed controlled substance
recidivism "especially dangerous").
Rolando Stockton is exactly the type of person to whom the career
offender classification is intended to apply. His criminal history, as
reflected by the Pre-Sentence Investigation Report and the facts pre-
sented at trial, indicates that Stockton has been entrenched in the drug
trade since at least 1990. He committed two serious drug offenses in
late 1990 and early 1991, for which he received a combined sentence
of 10 years incarceration, all of which was suspended, along with a
term of 5 years supervised probation. That leniency proved improvi-
dent, as Stockton violated the terms of his probation by unlawfully
possessing a handgun in 1994, which resulted in a three-year prison
term with the Maryland Department of Corrections. Almost immedi-
ately upon his release from incarceration, he returned to a life of
crime, committing the acts for which the jury convicted him here. In
short, Stockton is the very portrait of a career offender, and his classi-
fication as such under U.S.S.G. § 4B1.1 does not over-represent his
actual criminal history.
14 UNITED STATES v. STOCKTON
IV.
For the foregoing reasons, we affirm Stockton’s convictions, and
reverse the district court’s decision to depart downward based on the
over-representativeness of the career offender classification. Accord-
ingly, we remand the case for re-sentencing, with instructions to apply
the career offender classification.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS